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Delaware and Susquehanna, consisting of more than 2000 persons, many of whose people are in, possessing, improving and holding large tracts of said land in controversy, under title from the State of Connecticut, whose titles under said States respectively, will be materially affected by the decision in this case, yet have not been cited, or any way legally notified to be present at said trial, to defend their titles respectively, which, by the rules of proceeding in a court of justice, ought to be done, before any further proceedings are had in said case: and thereupon the said agents move this honourable court, to cause said companies of Delaware and Susquehanna, and other tenants in possession, holding under title from either of said States, to be duly cited in some proper and reasonable manner, to appear and defend at said trial, if they see cause, before any farther proceedings are had in said cause. And of this they pray the opi. nion of this honourable court.
J. Root, After argument, the court adjourned till to-morrow, ten of the clock.
Wednesday, November 20, 1782. The court met. The court gave their opinion on the motion of yesterday, made in writing by the agents of Connecticut.
“That the same cannot be admitted according to the construction of the 9th article of the confederation, and the tenor and designs of the commission under which they act."
I have quoted this at length for the purpose of more clearly establishing two points. 1st. That the right of soil was not decided at Trenton-that it could not be under the authority by which the court was constituted—that notice was therefore refused to be given to the settlers to appear; and the principle distinctly recognizedthat jurisdiction might be awarded to one State; and the right of soil be awarded to claimants under grants from another State. This matter will be adverted to hereafter: The other point is this—that the agents of Connecticut do therein, officially declare, not only once but twice, that the Susquehanna Company and the settlers, under their grants, derive title under Connecticut ; a matter of some moment.
The court continued its sittings until December 30th, when they rendered this very brief and very explicit judgment.
“We are unanimously of opinion, that the State of Connecticut has no right to the lands in controversy.
“We are also unanimously of opinion, that the jurisdiction and pre-emption of all the territory lying within the charter boundary of Pennsylvania, and now claimed by the State of Connectieut, do of right belong to the State of Pennsylvania.
DAVID BREARLY." In all which the Connecticut agents and counsel acquiesced without protest or murmur. After, to say the least, the plausible exhibit on the part of Connecticut, the perfect unanimity of the Court would strike an impartial observer as in no slight degree remarkable. The very brief judgment, not a solitary reason being given, would excite surprise. There is nothing extraordinary, or in the least degree surprising, admitting the position which I maintain to be correct—that the whole trial was a political movement, a mere “common recovery,” intended to convey, and carry into effect a previously understood arrangement between Pennsylvania and Connecticut.
It seems probable that Connecticut, before coming to the understanding with Pennsylvania, had made an offer to Congress to cede her western lands beyond the limits of that State ; most likely without any reservation. The reserve I take it was an after thought. On a careful examination I find no such proposition on the journal. If a new and different proposal was to be made, it might have been politic to withdraw the old one, and leave no trace of it. The fact comes out by a side wind. On the 31st of January, 1783, just a month after the Trenton decree, in a report of Mr. Carroll and others, on the finances, it is said “ Virginia and Connecticut have also made cessions, the acceptance of which, for particular reasons have been delayed." The matter was wisely permitted to sleep awhile. In May 22, 1786, on motion proceeding from a committee, to wit:
Resolved, That Congress, in behalf of the United States, are ready to accept all the right, title, interest and claim of the State of Connecticut, to certain western lands, &c."
Debate and several motions arose thereon. The question was not decided until the 26th, five days being devoted to its consideration. Seven times the yeas and nays were recorded. It is worthy
of emphatic remark; that Pennsylvania and Connecticut voted together five times! Once all the other States voting against them. Connecticut was once excused from voting; and only in one solitary instance out of the seven times, did they vote against each other, and that on a motion of no great moment made by another State. What new-born love! What brotherly affection! Can any one doubt its origin?
As adopted, the resolution was in these words "That Congress accept the said deed of cession, and that the same be recorded and enrolled among the acts of the United States, in Congress assembled.”
By the deed Connecticut grants “ all right, title, interest, jurisdiction and claim to certain western lands, beginning at the completion of the 41st degree of north latitude, one hundred and twenty miles west of the western boundary line of the Commonwealth of Pennsylvania, as now claimed by the said Commonwealth, and from thence by a line drawn north parallel to, and one hundred and twenty miles west of the said west line of Pennsylvania, and to continue north, until it comes to forty-two degrees and two minutes of north latitude." All west of this line is ceded, and of course, all east is reserved. The reservation is of 120 miles east and west, (bounding it easterly by the west line of Pennsylvania,) by a degree and two minutes north and south latitude, containing several millions of acres. It is well known by the name of New Connecticut, or the Western Reserve. It may be here proper as a historical fact to say, that about the year 1800, Connecticut made a formal release of all claim to jurisdiction or soil, west of the eastern limits of New York, excepting to the western reserve; and received from the United States letters patent for that tract.
By the proceedings detailed it will be seen that the right of Connecticut west of New York was recognized by Congress, accepting her cession, and admitting the reservation. Pennsylvania, by voting for the acceptance, did also distinctly recognize that right. How could she have a right west of Pennsylvania, and not through Pennsylvania, when her charter was nineteen years the oldest ? From which, the whole circumstances taken together, a rational doubt we think cannot be entertained, but that the decision at Trenton was made on grounds of policy and not of right.
There remains a most important matter bearing on this point, yet to be noticed, which pours in a flood of light, dispelling every shade of darkness or doubt, if any should still rest upon it.
The Hon. Cyrus Griffin, one of the Judges of the court at Trenton, in answer to inquiries from Barnabas Bidwell, wrote a letter in 1796, of which the following is a copy. Before transcribing this important paper, it seems proper to observe that Cyrus Griffin was a distinguished member of Congress from Virginia. I find he was, a delegate early in 1778; in 1780, he was elected a Judge of the Court of Appeals; in 1788, he was chosen President of Congress. Such is the character of the witness we produce. To the letter
“ Sır,-Being upon a tour of duty in the line of my office, I had not the pleasure of reading your letter until yesterday.
“ Before the Commissioners determined that important contest between Pennsylvania and Connecticut, it was agreed :
“ 1st. That the reasons for the determination should never be given.
“ 2d. That the minority should concede the determination as the unanimous opinion of the court.
“No doubt sufficient reasons appeared to us to adopt these preliminary points. Whether strictly justifiable, or at present would be adopted, I will not undertake to say; perhaps a different course might be pursued; but this I will undertake to say, that no court ever met and decided a great question, less subject to partiality or corruption, or in which more candour and freedom of debate were exercised.
“ As you seem to suppose, I do not know in what manner the jurisdiction might be considered if tried again; and especially since a number of important discoveries have been made, and a mass of evidence can now be produced which was not known at that time.
“But I can assure you, sir, that the commissioners were unanimously of opinion, that the private right of soil should not be affected by the decision.
“ The decision was not to reach the question of property in the soil.
“We recommended very strongly, derived from legal and political grounds, that the settlers should be quieted in all their claims by an act of the Pennsylvania Assembly; and that the right of soil, if I recollect truly, as derived from Connecticut, should be held sacred.
“Such, however, I AM CERTAIN, was the opinion of the individuals who composed that court.”
No comment could make the matter clearer; and I assume again, with the utmost confidence, that my proposition is well established,
viz: " That the decree of Trenton, adjudging the jurisdiction to Pennsylvania, was a decision of policy and not of right that it could not, and did not affect the right of soil."
Yet there is an additional fact of great weight, bearing on and supporting this conclusion. The claim of Massachusetts west of the Hudson, rested on precisely the same ground as that of Connecticut. Preliminary measures were adopted to raise a court, to try the question. Wisely preferring compromise to law, New York adjusted the matter by liberal and just concession; the States divided the land between them. In 1787, New York recognized the right of Massachusetts, conceded and confirmed her claim to the land, in all that part of western New York, beginning at a point on the Pennsylvania line, eighty-two miles west of the north-east corner of Pennsylvania, [the point of beginning is in Tioga county) thence north to the British boundary, and including with a trifling exception the whole of the Genesee and Lake country, west of that line. The exception was more than made up by 230,000 acres confirmed to Massachusetts east of that line, between the Oswego and Chenango rivers. The quantity of land retained by Massachusetts cannot be much less than 10,000 square miles, and probably exceeded seven millions of acres.
It would be an insult to the understanding, a mockery of common sense, to suppose that New York conceded this princely domain to Massachusetts, after the decree of Trenton, if that decree was regarded by any one living being, lawyer or politician, statesman or philosopher, as a decision of law and right-as any thing else, but a legal process of consummating a wise political arrangement.
Passing from these historical facts and speculations we proceed more directly to those which are strictly legal. An act was passed September 15, 1784, directing that the dispossessed settlers should be restored to their farms. Col. Antis, Sheriff of Northumberland, was ordered to perform the duty. A most important law and proceeding; as now, beyond controversy, the settlers had a clear legal Pennsylvania possession.
On the 30th of Dec., 1786, an act was passed for giving, during a limited time, a right of pre-emption.
I rather suggest than argue, the effect this act would have upon the rights of those persons in actual possession, claiming against warrant holders, whose surveys were made, and warrants obtained, subsequently thereto.